Publication of the judgment

Publication of the judgment is the additional measure by which the court orders, at the infringer’s expense, that the judgment against it be brought to the attention of the public, by posting, insertion in the press or online dissemination. The French Intellectual Property Code authorises it for each title, the court being able to order any appropriate measure for publicising the judgment, in particular its posting or its publication in full or in extracts (Articles L. 331-1-4, L. 521-8, L. 615-7-1 and L. 716-4-11 IPC). It transposes Article 15 of Directive 2004/48/EC.

Nature of the measure

Publication has a dual function. It remedies the harm resulting from confusion or damage to image, by informing customers and professionals of the reality of the rights, and it deters third parties from continuing similar acts. It is a measure of compensation in kind, distinct from damages, and it is added to the other corrective measures such as the recall and destruction of infringing products. It lies within the court’s discretion, and the court may refuse it where the judgment itself suffices as a remedy or where the publicity would be disproportionate to the extent of the acts.

Terms set by the court

The judgment specifies the medium, the number of insertions, the format, the time limit and the maximum cost borne by the losing party, together with the content of the publication, most often an extract from the operative part preceded by a neutral heading. The courts frequently order publication on the infringer’s website for a fixed period, on the home page, in a legible font, which calls for precise drafting of the operative part to avoid disputes over enforcement. The claimant may also be authorised to disseminate the decision on its own website and in publications of its choice, up to a set amount. The measure is generally backed by a penalty payment.

Precautions and risks

Publication is most often excluded from provisional enforcement or made conditional on the decision becoming final, since publication carried out on the basis of a judgment that is later overturned would cause damage that is hard to remedy. A claimant who on its own initiative disseminates a decision that is not final, or who comments on its content inaccurately or excessively, exposes itself to an action for disparagement. The Court of Cassation holds that disclosing a court decision may amount to disparagement where it is done unfairly, for example without mentioning that an appeal is pending. Communication about a favourable decision must therefore be measured and accurate.

Key points

Publication of the judgment, at the infringer’s expense, remedies the harm to image and deters third parties. The court freely decides whether to order it and sets the media and the cost. Request a precise and quantified operative part, refrain from any dissemination before the decision is final, and make sure that the company’s communication about a favourable decision fairly mentions any pending appeal.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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